NOT PRECEDENTIAL

UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT
_____________
No. 10-1541
_____________
UNITED STATES OF AMERICA
v.
DEVERN STANLEY,
Appellant
_____________
On Appeal from the District Court
of the United States Virgin Islands
District Court No. 3-09-cr-00037-001
District Judge: The Honorable Curtis V. Gmez
Submitted Pursuant to Third Circuit L.A.R. 34.1(a)
December 16, 2010
Before: McKEE, Chief Judge, FUENTES and SMITH, Circuit Judges
(Filed: December 28, 2010)
_____________________
OPINION
_____________________
SMITH, Circuit Judge.
A jury convicted Devern Stanley of attempting to import heroin into the United
States and of possessing heroin with intent to distribute. Stanley appeals. Finding no
reversible error, we will affirm.
I.
1

Stanley served as a crew member of the Sterling, a ferry that travels between the
United States Virgin Islands and the British Virgin Islands. On July 8, 2009, while the
Sterling was docked in Tortola, British Virgin Islands, Stanley accepted a bag from a
passenger named Jos Pea. He placed the bag in his personal backpack and stored it
near the Sterlings concessions area. According to the plan, when the Sterling arrived in
St. Thomas, U.S. Virgin Islands, Stanley would take the bag past customs and return it to
Pea. Things did not go as planned, however.
When the Sterling arrived in St. Thomas, a customs official selected the ferry for a
random inspection. Stanley accompanied the official during the inspection. While on
board, the official noticed Stanleys backpack, which was unattended. The official
inquired of Stanley as to whom the backpack belonged. Stanley said it was his. The
official opened the backpack and found Peas bag. The official opened the bag and
discovered a large number of plastic pellets. When asked about the contents of the
pellets, Stanley said they were filled with lotiona gift for his sister, he explained. A
field test performed near the scene proved otherwise: the pellets contained not lotion but
heroinover 700 grams of it. DEA lab testing confirmed the results of the field test.
Stanley was arrested and was convicted by a jury of attempting to import heroin
under 21 U.S.C. 952, 960(b)(2), and of possessing heroin with intent to distribute
under 21 U.S.C. 841(a)(1), 841(b)(1)(B)(i). The District Court sentenced Stanley to
97 months in prison.
II.
Stanley raises three issues on appeal; we will address them in turn.
2

A.
During the governments case-in-chief, Special Agent Louis Penn testified that,
after being arrested, Stanley stated that hes done this before for other individuals.
Stanley objected to this evidence under Federal Rule of Evidence 404(b). The District
Court admitted the statement, concluding that it was admissible to prove lack of mistake
or knowledge. Stanley challenges the ruling; we review for an abuse of discretion.
United States v. Lee, 612 F.3d 170, 186 (3d Cir. 2010).
Rule 404(b) provides that [e]vidence of other crimes, wrongs, or acts is not
admissible to prove the character of a person in order to show action in conformity
therewith. But Rule 404(b) allows the introduction of other-acts evidence for noncharacter purposes, e.g., to show that the defendant acted with the requisite knowledge or
in the absence of mistake. Fed R. Evid. 404(b); United States v. Givan, 320 F.3d 452,
461 (3d Cir. 2003).
The District Court rightly concluded that the statement was admissible under Rule
404(b) to prove that Stanley knew Peas bag contained heroin, an element of the
governments case. See Givan, 320 F.3d at 46062; United States v. Lopez, 340 F.3d
169, 17374 (3d Cir. 2003); United States v. Boone, 279 F.3d 163, 187 (3d Cir. 2002).
Indeed, Stanleys defense was that he did not know the bag contained heroin, so the
presence or absence of such knowledge was the critical issue at trial.
Still, the District Court failed to determine whether the statement was admissible
under Rule 403, as required. See United States v. Sampson, 980 F.2d 883, 889 (3d Cir.
1992) (other-acts evidence must survive Rule 403 balancing to be admissible). Where
3

the district court fails to explicitly articulate the Rule 403 balancing: we [either] decide
the trial court implicitly performed the required balance; or, if we decide the trial court
did not, we undertake to perform the balance ourselves. Ansell v. Green Acres
Contracting Co., 347 F.3d 515, 525 (3d Cir. 2003) (quoting Glass v. Phila. Elec. Co., 34
F.3d 188, 192 (3d Cir. 1994)). We opt to do the balancing ourselves.
On one hand, the statement was probative on the key issue in the case: whether
Stanley knew Peas bag contained heroin. On the other hand, although there was some
risk of unfair prejudice, the statement played a minor role in the case; it was brought up
in the jurys presence just three timesonce by the government and twice by Stanley
himself. When it did come up, it was discussed very briefly. Moreover, the one time the
government mentioned the statement, it asked the jury to consider it in determining
whether Stanley had the requisite knowledge, thus reducing the likelihood that the
statement would be used to draw the forbidden, he-has-a-bad-character-and-is-thereforeguilty inference. On balance, we cannot say that the statements probative value was
outweighed by its tendency to cause unfair prejudice.
Stanley contends that even if the statement was admissible to prove knowledge or
lack of mistake, the District Court erred in failing to instruct the jury that it could be
considered only for such purposes. Stanley did not request a limiting instruction in the
District Court, so we review for plain error. See Fed. R. Crim. P. 52(b); Lee, 612 F.3d at
191; United States v. Gibbs, 190 F.3d 188, 217 (3d Cir. 1999); Govt of the V.I. v.
Roldan, 612 F.2d 775, 78081 (3d Cir. 1979); United States v. Greenlee, 517 F.2d 899,
90405 (3d Cir. 1975). We conclude that the District Courts failure to sua sponte issue a
4

limiting instruction did not amount to plain error. See United States v. Simmons, 679
F.2d 1042, 104950 (3d Cir. 1982); Roldan, 612 F.2d at 78081; Greenlee, 517 F.2d at
90405 (where defendant objected to admission of other-acts evidence but did not request
a limiting instruction, its admission for impeachment purposes without a limiting
instruction was not plain error); accord United States v. Bamberg, 478 F.3d 934, 939 (8th
Cir. 2007); United States v. Gregory, 74 F.3d 819, 822 (7th Cir. 1996); United States v.
Parziale, 947 F.2d 123, 129 (5th Cir. 1991); United States v. Tunsil, 672 F.2d 879, 881
n.3 (11th Cir. 1982). 1
B.
Stanley elected to testify at trial. On direct examination, Stanley tried to testify
about and have admitted into evidence a written statement that he had given to law
enforcement at the time of his arrest. In the statement, Stanley asserted that he did not
know what was in Peas bag. The government objected on hearsay grounds, to which
Stanley responded that the statement was admissible under the residual hearsay
exception. See Fed. R. Evid. 807. The District Court sustained the governments
objection.
1

Had Stanley requested a limiting instruction, the District Court clearly would have had to issue
one. See Fed. R. Evid. 105 (When evidence which is admissible . . . for one purpose but not
admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence
to its proper scope and instruct the jury accordingly.) (emphasis added); see also Huddleston v.
United States, 485 U.S. 681, 69192 (1988). However, since the statement did not figure
prominently into the trial, see supra, defense counsel may have declined to request a limiting
instruction for tactical reasons. See Albrecht v. Horn, 485 F.3d 103, 127 (3d Cir. 2007) (noting
that when other-acts evidence is briefly or fleetingly presented, an attorney may decline to
request a limiting instruction to avoid drawing attention to the evidence).

We need not reach Stanleys argument that the District Court erred in concluding
that the statement was inadmissible under the residual hearsay exception (though we have
our doubts that it did, see United States v. Lawrence, 349 F.3d 109, 117 (3d Cir. 2003)
(residual exception to be used only rarely and in exceptional circumstances)).
Any error in refusing to admit the statement on direct examination was clearly harmless:
the statement was admitted into evidence on cross-examination, Stanley testified about
and published it on redirect, and Stanley urged the jury to consider it during closing
arguments. See Fed. R. Crim. P. 52(a) (providing that [a]ny error, defect, irregularity, or
variance that does not affect substantial rights must be disregarded).
C.
Finally, Stanley challenges the sentence imposed by the District Court. He admits
that the Court committed no procedural errors, i.e., that the Court correctly calculated the
Guidelines range, correctly ruled on any departure motions (though it appears there were
none, see JA 233), and considered the factors set out in 18 U.S.C. 3553(a). See United
States v. Gunter, 462 F.3d 237, 247 (3d Cir. 2006). He argues, though, that the Court
misapplied the 3553(a) factors and that his sentence is therefore substantively
unreasonable. He asserts that he was merely a mule in the drug trade, and that his 97month sentencethe minimum sentence recommended by the Sentencing Guidelinesis
thus too long. We review the substantive reasonableness of a sentence for abuse of
discretion. United States v. Tomko, 562 F.3d 558, 567 (3d Cir. 2009) (en banc).
When there has been no showing of procedural error, we accord substantial
deference to the district courts determination that the 3553(a) factors, on a whole,
6

justify the sentence. Id. at 568 (internal quotation marks omitted); see also United
States v. Bungar, 478 F.3d 540, 543 (3d Cir. 2007) (an appellate court must be highly
deferential to a sentencing courts application of the 3553(a) factors); United States v.
Grier, 475 F.3d 556, 571 (3d Cir. 2007) (en banc). Thus, a defendant challenging the
substantive reasonableness of his sentence bears the heavy burden of establishing that no
reasonable sentencing court would have imposed the same sentence on that particular
defendant for the reasons the district court provided. Tomko, 562 F.3d at 568. Stanley
has failed to carry that burden. The District Court listened to the defendants allocution,
considered and discussed the 3553(a) factors, and imposed a sentence of 97 months in
custody, the minimum sentence recommended by the Sentencing Guidelines. The
sentence was reasonable and will not be disturbed. 2
III.
For the foregoing reasons, we will affirm the District Courts judgment.

To the extent Stanley argues that the District Court erred in failing to apply a minor-role
adjustment under 3B1.2 of the Sentencing Guidelines, the issue is not properly before us,
because Stanley did not request such an adjustment in the District Court, JA 233. See United
States v. Headley, 923 F.2d 1079, 1083 (3d Cir. 1991).
7